FOIL Appeal Determination for 07-39-0A
January 4, 2008
New York State Department of Environmental Conservation
Office of Hearings and Mediation Services, 14th Floor
625 Broadway, Albany, New York 12233-1010
Phone: (518) 402-8537 • FAX: (518) 402-9037
CERTIFIED MAIL, RETURN RECEIPT REQUESTED
January 4, 2008
Re: Freedom of Information Law Request No. 07-2188
Freedom of Information Law Appeal No. 07-39-0A
This is in response to your telecopy dated October 15, 2007 ("October telecopy") to Commissioner Alexander B. Grannis of the New York State Department of Environmental Conservation ("Department"). Pursuant to the October telecopy, you appealed the denial of your request, pursuant to the Freedom of Information Law ("FOIL"), for a copy of your statement "with Lt. Crain." You also requested "a copy of the status of [your] two complaints" with respect to two properties on Greens Corner Road in the Town of Galway, Saratoga County, New York. You also raised questions regarding a letter dated October 1, 2007 from the Galway Volunteer Fire Company.
By letter dated October 12, 2007, the Department's Records Access Officer indicated that there were two records responsive to your request but that access was being denied "based on the provisions of Public Officers Law . . . Section 87(2)(a), more specifically New York State Civil Rights Law Section 50-a, in that both documents represent law enforcement personnel records and are therefore confidential and exempt from disclosure." Two other records were previously provided to you in redacted form by the Records Access Officer under cover of her letter dated September 14, 2007.
In accordance with the Department's FOIL procedures, I requested a copy of the two records that were withheld from disclosure and have conducted a de novo review. The records include: (a) an undated Supervisor's Inquiry Report regarding your complaint concerning the actions of one of the Department's environmental conservation officers; and (b) an investigator's report dated August 17, 2007 into that matter. Lt. W. G. Crain, who was assigned by the Department to investigate your personnel complaint, prepared both reports.
Based upon my review of the two records, the decision to withhold both records was appropriate and, accordingly, is upheld. Furthermore, I have determined that an additional FOIL exemption is applicable and further supports the withholding of the two records.
With respect to the report dated August 17, 2007 and the Supervisor's Inquiry Report, both were properly withheld pursuant to section 87(2)(a) of the Public Officers Law ("POL"). That section of the POL allows an agency to deny access to records or portions thereof that are specifically exempted from disclosure by state or federal statute. Pursuant to New York State Civil Rights Law § 50-a, all personnel records of police officers (which includes environmental conservation officers) under the control of any department of the State shall be considered confidential. Complaints of misconduct, and investigative personnel reports relating to such complaints, are the very types of records that Civil Rights Law § 50-a was designed to protect from disclosure. Because both records were generated as a result of your complaint against one of the Department's environmental conservation officers, access to those records was properly withheld (see, e.g., Matter of Gannett Co., Inc. v. James, 86 AD2d 744, 745 , lv denied, 56 NY2d 502 ; Argentieri v. Goord, 25 AD3d 830 [documents generated as a result of investigation into complaint of misconduct exempt from disclosure]).
In addition, POL § 87(2)(g), authorizes the denial of access to records or portions thereof that are intra-agency or inter-agency materials which are not: (i) statistical or factual tabulations or data; (ii) instructions to staff that affect the public; (iii) final agency policy or determinations; or (iv) external audits, including but not limited to audits performed by the comptroller and the federal government (see POL § 87[g][i]-[iv]). Intra-agency and inter-agency materials that consist of opinions and recommendations of agency staff are exempt from FOIL "to protect the deliberative process of the government by ensuring that persons in an advisory role would be able to express their opinions freely to agency decision makers (citation omitted)" (Matter of Xerox Corp. v. Town of Webster, 65 NY2d 131, 132 ; see also New York Times Co. v. City of New York Fire Dept., 4 NY3d 477, 488  ["The point of the intra-agency exception is to permit people within an agency to exchange opinions, advice and criticism freely and frankly"]). Consistent with the foregoing, I have determined that the Supervisor's Inquiry Report and the investigator's report dated August 17, 2007 constitute intra-agency material and are exempt from disclosure pursuant to POL § 87(2)(g), in addition to POL § 87(2)(a).
In the course of my review of the two records, I have been provided with four photographs. Because it is not clear whether they were previously provided to you, copies of the four photographs are enclosed.
In your October telecopy, you also inquired regarding the status of your complaints with respect to two properties on Greens Corner Road. For information on the status of those complaints, I would refer you to Captain J. H. Schneider of the Department's Region 5 office, at (518) 897-1324. Regarding your concerns with respect to the Town of Galway and the local volunteer fire company and open burning, you may wish to contact the Town and fire company directly. I also understand that Lt. Crain provided you with complaint forms in August that could be filed with the Department in the event of any open burning concerns.
This letter is the final determination of the Department of Environmental Conservation with respect to your appeal. You have the right to seek review of this determination pursuant to Article 78 of the New York Civil Practice Law and Rules, and Public Officers Law § 89(4)(b). In any future correspondence relating to this appeal, please refer to FOIL Appeal No. 07-39-0A.
Louis A. Alexander
cc: Robert Freeman, Executive Director, Committee on Open Government
Ruth L. Earl, Records Access Officer
Captain J. H. Schneider
Lt. William G. Crain